EXECUTION COPY
ASC Loan Agreement
LOAN AGREEMENT
This LOAN AGREEMENT (as the same may be amended, supplemented or
modified from time to time, this "Agreement") is made as of July
21, 1998, between ACCENT COLOR SCIENCES, INC., a Connecticut
corporation, having its principal place of business at ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Company"), and INTERNATIONAL BUSINESS MACHINES CORPORATION, a
New York corporation, with its principal place of business at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Lender").
WHEREAS, the Company now desires to borrow from Lender a total of
$2,500,000 (two million five hundred thousand dollars) and Lender
is willing to loan such amount subject to the terms and
conditions set forth in this Agreement and the related documents
to be executed concurrently herewith or pursuant hereto;
WHEREAS, such loan shall be secured by the assets of the Company
as provided in the Security Agreement (as defined below); and
WHEREAS, to induce Lender to provide the loan, the Company has
agreed to issue to Lender a warrant to purchase 500,000 shares of
its common stock, no par value, and to provide registration
rights with respect thereto.
NOW THEREFORE, in consideration of the mutual promises, covenants
and other agreements hereinafter set forth, the parties hereto
agree as follows:
SECTION 1.THE LOAN.
1.1 The Loan. (a) Subject to the terms and conditions and
relying on the representations, warranties and covenants set
forth herein, Lender agrees to make a loan to the Company in the
aggregate principal amount of TWO MILLION FIVE HUNDRED THOUSAND
DOLLARS ($2,500,000) (the "Loan"), which Loan shall be evidenced
by a promissory note in the form attached as Exhibit A hereto
(the "Note").
(b)Subject to the other terms and conditions hereof and upon the
execution of this Agreement, the Note, the Security Agreement,
the Warrant (as defined below) and the Registration Rights
Agreement (as defined below), the amount of the Loan will be
funded to the Company by wire transfer to the Company's account
(number 9361548689) at Fleet National Bank, Hartford, Connecticut
(ABA number ▇▇▇▇▇▇▇▇▇).
1.2Maturity Date. Unless sooner repaid in accordance with the
terms of this Agreement, the principal balance of the Loan shall
be due and payable, together with all interest accrued but not
yet paid, on December 31, 2000.
1.3Interest. (a) So long as no Event of Default has occurred
and is continuing, the Company shall pay interest to Lender at a
rate per annum which is equal to ten percent (10%) per annum on
the entire principal amount remaining unpaid and outstanding. So
long as an Event of Default has occurred and is continuing,
amounts payable under this Agreement shall bear interest
(compounded monthly and payable on demand in respect of overdue
amounts) at a rate per annum which is 2% per annum above the rate
otherwise applicable.
(b) Accrued interest shall be paid by the Company to Lender (i)
on the first day of each October, January, April and July to and
including October 1, 2000 and (ii) on December 31, 2000 when the
entire principal balance together with any unpaid accrued
interest and all other sums hereunder shall become due and
payable.
(c)All computations of interest payable hereunder shall be made
by Lender on the basis of actual days elapsed and on a 360-day
year.
(d)Notwithstanding anything herein or in the Note to the
contrary, if at any time the applicable interest rate, together
with all fees and charges and rights of any kind which are
treated as interest under applicable law (collectively the
"Charges"), as provided for herein or in any other document
executed in connection herewith, or otherwise contracted for,
charged, received, taken or reserved by Lender, shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted
for, charged, received, taken or reserved by Lender in accordance
with applicable law, the rate of interest payable, together with
all Charges payable to Lender, shall be limited to the Maximum
Rate.
1.4Prepayment. (a) The Company shall have the right at any time
and from time to time, without premium or penalty, to prepay the
principal amount of the Loan, in whole or in part, together with
accrued interest on the prepaid amount, upon notice to Lender
(each such notice being referred to herein as a "Prepayment
Notice"); provided, however, that any prepayments of less than
the entire outstanding balance of the Loan shall be at least
$500,000.
(b)Each Prepayment Notice shall specify the prepayment date and
the principal amount (or portion thereof) to be prepaid as well
as the interest accrued on such amount to the date of payment.
(c)Any principal amount of this Note shall be accompanied by
accrued interest on the principal amount being prepaid to the
date of payment.
(d)If the Company sells any of the Collateral (as defined in the
Security Agreement) other than inventory sold in the ordinary
course of the Company's business, or if any of the Collateral is
taken by condemnation, the Company shall pay to Lender, unless
otherwise agreed by Lender, as a mandatory prepayment of the
Loan, a sum (not to exceed the amount of principal, interest and
other sums, if any, due to Lender under this Agreement, the Note,
the Security Agreement, the Warrant and the Registration Rights
Agreement) equal to the cash proceeds received by the Company
from such sale or condemnation and shall assign to Lender all of
its right, title and interest in and to all non-cash proceeds
from such sale or condemnation; provided however, that no
prepayment shall be required pursuant to this Section 1.4(d) as a
result of equipment sold in the ordinary course of the Company's
business if the total value of all such equipment sold in any one
calendar month does not exceed $25,000.
1.5Setoff. If during the term of this Loan an Event of Default
shall occur, any amount owed to Lender hereunder shall
immediately be setoff against any and all amounts Lender, its
subsidiaries and affiliates may owe to the Company, its
subsidiaries and affiliates at such time.
SECTION ▇.▇▇▇▇▇▇▇▇, WARRANT AND REGISTRATION RIGHTS. The Company
hereby acknowledges that it has executed and delivered to Lender
each of the following documents: (i) the Note;(ii) the security
agreement, dated as of the date hereof, between the Company and
Lender, in the form attached as Exhibit B hereto (as the same may
be amended, supplemented or modified from time to time, the
"Security Agreement"); (iii) the stock purchase warrant, dated as
of the date hereof, in the form attached as Exhibit C hereto (as
the same may be amended, supplemented or modified from time to
time, the "Warrant"); and (iv) the registration rights agreement,
dated as of the date hereof, between the Company and Lender, in
the form attached as Exhibit D hereto (as the same may be
amended, supplemented or modified from time to time, the
"Registration Rights Agreement").
SECTION 3.REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to Lender that:
3.1Organization. The Company is a corporation duly organized,
validly existing and in good standing under the laws of
Connecticut, has the necessary authority and power to transact
the business in which it is engaged, is duly qualified to do
business in each jurisdiction in which the conduct of its
business or the ownership of its assets require such
qualification.
3.2Authorization; Enforcement. (i) The Company has the requisite
corporate power and authority to enter into and perform its
obligations under this Agreement, the Note, the Security
Agreement, the Warrant and the Registration Rights Agreement
(including without limitation the power and authority to borrow
the money as contemplated hereby, issue the Warrant Shares (as
defined in the Warrant) upon exercise of the Warrant in
accordance with the terms thereof and grant the first priority
security interest in the Collateral pursuant to the Security
Agreement); (ii) the execution, delivery and performance of this
Agreement, the Note, the Security Agreement, the Warrant and the
Registration Rights Agreement by the Company and the consummation
by it of the transactions contemplated hereby and thereby
(including, without limitation, the issuance of the Warrant and
the issuance and reservation for issuance of the Warrant Shares)
have been duly authorized by the Company's Board of Directors and
no further consent or authorization of the Company, its Board of
Directors, any committee of the Board of Directors, or its
stockholders is required; (iii) this Agreement, the Note, the
Security Agreement, the Warrant and the Registration Rights
Agreement have been duly executed and delivered by the Company;
and (iv) this Agreement, the Note, the Security Agreement, the
Warrant and the Registration Rights Agreement constitute valid
and binding obligations of the Company enforceable against the
Company in accordance with their terms.
3.3Compliance with Other Instruments. The Company is not in
default (a) under its Certificate of Incorporation or Bylaws, any
material note, indenture mortgage, lease, agreement, contract,
purchase order or other instrument, document, or agreement to
which the Company is a party or by which it or any of its
property is bound or affected; (b) with respect to any order,
writ, injunction or decree of any court or any federal, state,
municipal or other governmental department, commission or board.
To the best of the Company's knowledge after due inquiry, no
third party is in default under any material agreement, contract
or other instrument to which the Company is a party or by which
it or any of its property is affected.
3.4No Conflicts. Except as set forth in Schedule 3.4, the
execution, delivery and performance of this Agreement, the
Security Agreement, the Warrants and the Registration Rights
Agreement by the Company and the consummation by the Company of
the transactions contemplated hereby and thereby (including,
without limitation, the issuance and reservation for issuance, as
applicable, of the Warrant and Warrant Shares) will not (i)
result in a violation of the Company's Certificate of
Incorporation or By-laws or (ii) conflict with, or constitute a
default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of
termination, amendment (including, without limitation, the
triggering of any anti-dilution provisions), acceleration or
cancellation of, any agreement, indenture or instrument to which
the Company or any of its subsidiaries is a party, or result in a
violation of any law, rule, regulation, order, judgment or decree
(including U.S. federal and state securities laws and
regulations and rules or regulations of any self-regulatory
organizations to which either the Company or its securities are
subject) applicable to the Company or any of its subsidiaries or
by which any property or asset of the Company or any of its
subsidiaries is bound or affected.
3.5No Consents. Except as specifically contemplated by this
Agreement and the Registration Rights Agreement, the Company is
not required to obtain any consent, approval, authorization or
order of, or make any filing or registration with, any court or
governmental agency or any regulatory or self regulatory agency
in order for it to execute, deliver or perform any of its
obligations under this Agreement, the Security Agreement, the
Warrant or the Registration Rights Agreement, in each case in
accordance with the terms hereof or thereof.
3.6Information Disclosed to Lender. All information provided by
the Company to Lender in connection with this Agreement, the
Note, the Security Agreement, the Warrant and the Registration
Rights Agreement and the transactions contemplated hereby and
thereby:
(a)is true and correct in all material respects and the Company
has not omitted to state any material fact necessary in order to
make the statements made herein or therein, in light of the
circumstances in which they were made, not misleading; and
(b)either (A) has been publicly disclosed in one or more filings
with the Securities and Exchange Commission (the "SEC") pursuant
the Securities Act of 1933, as amended, and/or the Securities
Exchange Act of 1934, as amended, or (B) is not required to be so
disclosed.
3.7Financial Statements. The Company has furnished to Lender its
consolidated statement of financial position and related
consolidated statements of earnings, cash flows and stockholders'
equity as of and for the year ended December 31, 1997, audited by
and accompanied by the opinion of Price Waterhouse LLP. Such
financial statements present fairly the financial position,
results of operations, cash flows and changes in stockholders'
equity of the Company and its subsidiaries in accordance with
U.S. generally accepted accounting principles.
3.8Absence of Certain Changes. Since December 31, 1997, there
has been no material adverse change and no material adverse
development in the business, properties, operations, prospects,
financial condition or results of operations of the Company and
its subsidiaries, taken as a whole, except as publicly disclosed
in filings by the Company with the SEC prior to the date hereof.
3.9Absence of Litigation. There are no lawsuits or proceedings
to which the Company is a party, or which are threatened, with
respect to which a result adverse to the Company would prejudice
the Company's ability to perform its obligations under, or affect
the validity of, this Agreement, the Note, the Security
Agreement, the Warrant or the Registration Rights Agreement.
3.10No Liens. Except with respect to Lender and as set forth on
Schedule 3.10, the Company has not granted security interests in,
and there are no outstanding liens, encumbrances, mortgages,
pledges, hypothecations, charges, restrictions or other security
interest of any kind securing any obligation of any entity or
person (collectively, "Liens") with respect to, its tangible or
intangible assets.
3.11Tax Returns. The Company and each of its subsidiaries has
filed or caused to be filed all foreign, federal, state and
local income and all other tax returns required to be filed by it
and has paid or caused to be paid all taxes shown to be due and
payable on such returns or on any assessments received by it
except those being contested in good faith and has set aside on
its books provisions reasonably adequate for the payment of all
taxes for periods subsequent to the periods to which such
returns, reports or declarations apply.
3.12Capitalization. The capitalization of the Company as of the
date hereof, including the authorized capital stock, the number
of shares issued and outstanding, the number of shares issuable
and reserved for issuance pursuant to the Company's stock option
plans, the number of shares issuable and reserved for issuance
pursuant to securities (other than the Warrant) exercisable or
exchangeable for, or convertible into, any shares of capital
stock and the number of shares reserved for issuance upon the
exercise of the Warrant is set forth on Schedule 3.12. All of
such outstanding shares of capital stock have been, or upon
issuance in accordance with the terms of any such warrants,
options or preferred stock, will be, validly issued, fully paid
and non-assessable. No shares of capital stock of the Company
(including the Warrant Shares) are subject to preemptive rights
or any other similar rights of the stockholders of the Company or
any liens or encumbrances. Except for the securities and as set
forth on Schedule 3.12, as of the date of this Agreement, there
are no outstanding options, warrants, rights to subscribe to
securities or rights convertible into or exercisable for, any
shares of capital stock of the Company or any of its
subsidiaries, or arrangements by which the Company or any of its
subsidiaries is or may become bound to issue additional shares
of capital stock of the Company or any of its subsidiaries.
Except as set forth on Schedule 3.12, there are no securities or
instruments containing antidilution or similar provisions that
will be triggered by the issuance of the Warrant or the Warrant
Shares in accordance with the terms of this Agreement and the
Warrant. The Company has furnished to the Purchasers true and
correct copies of the Company's Certificate of Incorporation as
in effect on the date hereof, the Company's By-laws as in effect
on the date hereof, and all other instruments and agreements
governing securities convertible into or exercisable or
exchangeable for capital stock of the Company.
SECTION 4.COVENANTS OF THE COMPANY. The Company covenants and
agrees that from and after the date hereof and until such time as
all amounts of principal and interest payable under the Note have
been indefeasibly paid in full, the Company shall:
4.1Notice. Promptly give written notice to Lender of the
occurrence of any Event of Default, of the commencement or threat
of any material litigation or proceedings affecting the Company,
or of any dispute between the Company and any regulatory body.
4.2Legal Compliance. Observe all requirements of any
governmental authorities relating to the conduct of its business;
maintain its existence as a legal entity in good standing; and
obtain and keep in full force and effect all rights, franchises,
licenses and permits which are necessary to the proper conduct of
its business.
4.3Inspection. Permit Lender or its authorized representative at
any reasonable time and upon reasonable notice to inspect the
books and records of the Company.
4.4Proper Records. Keep proper books of record and account in
which full, true and correct entries in accordance with generally
accepted accounting principles will be made of all dealings or
transactions in relation to its business and activities.
4.5Financial Information. Deliver to Lender: (i) within ten (10)
days after the filing with the SEC, a copy of its Annual Report
on Form 10-K, its Quarterly Reports on Form 10-Q, its proxy
statements and any Current Reports on Form 8-K; and (ii) within
one (1) day after release, copies of all press releases issued by
the Company or any of its subsidiaries. Delivery of these items
shall be made to:
IBM Printing Systems Company
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, III
Vice President and IBM Associate General Counsel
4.6Use of Proceeds. Use the proceeds from this Loan for working
capital and operating expenses.
4.7Liens. Not grant or permit to exist a Lien upon any of its
assets of any kind, now owned or hereafter acquired, except Liens
in favor of Lender or as set forth on Schedule 3.10, without the
prior written consent of Lender.
4.8Accounts Receivable. Not sell, discount or otherwise transfer
its accounts receivable against current or deferred payment of
the purchase price thereof.
4.9Distributions. Not pay any dividend or distribution of cash
or assets with respect to any shares of its capital stock, nor
repurchase any capital stock, other than any distributions of
cash on shares of the Company's Series B Convertible Preferred
Stock required under the terms thereof or any deemed repurchases
of the Company's capital stock by reason of a cashless exercise
of any options and warrants to purchase the Common Stock of the
Company.
SECTION ▇.▇▇▇▇▇▇ OF DEFAULT
If any of the following events (herein called an "Event of
Default") shall occur:
(a)The Company shall default in the payment of any part of the
principal of the Loan when and as the same shall become due and
payable, whether at maturity or by acceleration or otherwise; or
(b)The Company shall default in the payment of interest on the
Loan when and as the same shall become due and payable, and such
default in the payment of interest shall continue for a period of
five days after said default; or
(c)The Company fail to perform, keep or observe any other term or
provision of this Agreement, the Note, the Security Agreement,
the Warrant, the Registration Rights Agreement or any of other
document executed in connection with the transactions
contemplated hereby and such default shall continue for a period
of thirty (30); or
(d)an event of default, as defined in any indenture, agreement,
or instrument evidencing or under which there is at the time
outstanding any indebtedness of the Company for borrowed money,
shall occur and such indebtedness shall have become or been
declared due and payable at or prior to the date on which it
would otherwise have become due and payable and such event of
default shall not have been cured or waived; or
(e)any representation or warranty by the Company in this
Agreement, the Note, the Security Agreement, the Warrant or the
Registration Rights Agreement or in any document provided in
connection herewith or therewith shall prove to have been
incorrect in any material respect when made; or
(f)A Change of Control (as hereinafter defined) shall occur. A
"Change of Control" shall mean the occurrence of any one of the
following events: (i) any "person" (as such term is used in
Sections 3(a)(9) and 13(d) of the ▇▇▇▇ ▇▇▇) becomes a "beneficial
owner" (as such term is used in Rule 13d-3 promulgated under the
▇▇▇▇ ▇▇▇) of 30% or more of the Company's capital stock having
general voting power to elect the directors of the Company; (ii)
the majority of the Company's board of directors consists of
individuals other than the members of the board as of the date
hereof (the "Incumbent Directors"); provided that any person
becoming a director subsequent to the date hereof whose
nomination for election was supported by two-thirds of the
directors who then comprised the Incumbent Directors shall be
considered to be an Incumbent Director; (iii) the merger or
consolidation of the Company with or into another corporation
and, after such merger or consolidation is consummated, either
(A) the Company is not the surviving corporation, or (B) if the
Company is the surviving corporation, then the Company is a
wholly-owned subsidiary of another corporation and the
stockholders of the Company, immediately before such merger or
consolidation is consummated, do not own at least 80% of the
voting capital stock of the Company's parent corporation
immediately after such merger or consolidation is consummated;
(iii) the sale, lease, transfer or disposition of 20% or more of
the Company's assets or (iv) the Company adopts a plan of
liquidation providing for the distribution of all or
substantially all of its assets; or
(g)the Company shall (i) voluntarily commence any proceeding or
file any petition seeking relief under Title 11 of the United
States Code or any other Federal or state bankruptcy, insolvency,
or similar law, (ii) consent to the institution of, or fail to
controvert in a timely and appropriate manner, any such
proceeding or the filing of any such petition, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian,
sequestrator, or similar official for the Company or for a
substantial part of its property or assets, (iv) file an answer
admitting the material allegations of a petition for involuntary
bankruptcy filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, (vi) admit in
writing its general inability to pay its debts as they become due
or (vii) take corporate action for the purpose of effecting any
of the foregoing; or
(h)an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction
seeking (i) relief in respect of the Company or of a substantial
part of any of its property or assets, under Title 11 of the
United States Code or any other Federal or state bankruptcy,
insolvency, or similar law, (ii) the appointment of a receiver,
trustee, custodian, sequestrator, or similar official for the
Company or for a substantial part of its property or (iii) the
winding-up or liquidation of the Company, and, if and so long as
contested by the Company, either such proceeding or petition
described in this clause (B) shall continue undismissed for
ninety (90) days or an order or decree approving or ordering any
of the foregoing shall continue unstayed and in effect for ninety
(90) days.
then, (i) in the event of (a), (b), (c), (d) or (e) above, Lender
may at any time (unless all defaults shall theretofore have been
remedied or waived in writing by Lender) at its option, by
written notice to the Company, declare the Loan to be due and
payable, whereupon the same shall forthwith mature and become due
and payable, together with interest accrued thereon, without
diligence, presentment, demand, protest, or notice of any kind
whatsoever, all of which are hereby waived by the Company; or
(ii) in the event of (f), (g) or (h) above, the Loan shall be
immediately due and payable, whereupon the same shall forthwith
mature and become due and payable, together with interest accrued
thereon, without diligence, presentment, demand, protest, or
notice of any kind whatsoever, all of which are hereby waived by
the Company.
In case of one or more Events of Default shall occur and be
continuing, Lender may proceed to protect and enforce its rights
by an action at law, suit in equity or other appropriate
proceeding, whether for the specific performance of any agreement
described or contained herein or in any other agreement between
the parties, or for an injunction against violation of any of the
terms hereof or thereof, or in aid of the exercise of any power
granted hereby or thereby or by law. In case of a default in the
payment of any principal or interest on the Loan, the Company
will pay to Lender such further amount as shall be sufficient to
cover the cost and expenses of collection, including, without
limitation, reasonable attorneys' fees, expenses, and
disbursements. No course of dealing and no delay on the part of
Lender in exercising any right shall operate as a waiver thereof
or otherwise prejudice Lender's rights, nor shall the nonexercise
by Lender of any of its rights hereunder in any particular
instance constitute a waiver thereof in that or any subsequent
instance.
SECTION 6.MISCELLANEOUS
6.1No Extrinsic Assurances. By execution of this Agreement, the
Company agrees and acknowledges that (i) in entering into this
Agreement, the Company is not relying and will not rely on the
prospect of any orders for its products from Lender, or on any
present or future loans, extensions of credit, or other business
dealings or relationship with Lender, other than as expressly
provided herein; (ii) Lender has no obligation to make any
additional loans or extend any credit to the Company or to
further amend the terms of this Agreement, or the agreements
referenced herein in order to extend the maturity of, or waive
any of its rights with respect to any existing agreements between
Lender and the Company, and (iii) the Company will repay Lender
all amounts due and owing under this Agreement and the Note,
under the terms set forth therein and herein.
6.2Freedom of Action. Nothing in this Loan Agreement shall be
construed as prohibiting or restricting Lender from independently
developing, acquiring, and/or marketing any hardware, software,
firmware or other products or services which are or may be
considered competitive in any form with the products, services
and other materials of the Company, and Lender shall have full
freedom and flexibility in its marketing efforts for the
licensing, sublicensing or sale of any of the foregoing,
including, without limitation, the freedom to market, not market,
to discontinue marketing, and to decide its own method of
marketing terms, conditions and pricing.
6.3Future Bank Line of Credit. Notwithstanding Section 4.7 hereof
or the provisions of the Security Agreement, in the event the
Company elects to secure a working capital line of credit with a
commercial bank and the bank requires, as a condition to
extending the working capital line of credit, that the Company
provide the bank with a first priority security interest in the
receivables of the Company, Lender agrees to consider the
possibility of permitting a lien on the Company's accounts
receivables and subordinating its interest in such receivables to
such bank. Lender, however, reserves the right, in its sole
discretion, not to subordinate its interests in such receivables.
6.4Waiver; Remedies. No waiver of any of the provisions of this
Agreement, or of any attachment hereto or other document, or
attachment thereto, shall be effective unless it is set forth in
a writing which refers to the provision(s) so waived and is
executed by an authorized representative of the party waiving its
rights. No failure or delay by either party in exercising any
right, power or remedy will operate as a waiver of any such
right, power or remedy. No right or remedy in this Agreement is
intended to be exclusive but each shall be cumulative and in
addition to any other remedy referred to herein or otherwise
available to Lender at law or in equity; and the exercise by
Lender of any one or more remedies shall not preclude the
simultaneous or late exercise by Lender of any or all such other
remedies.
6.5Survival of Representations and Warranties. The
representations and warranties contained in this Agreement shall
survive the execution and delivery of this Agreement and shall
remain in full force and effect until the Loan and any unpaid
interest and expenses have been repaid in full. All other terms
and conditions of all other Agreements which are not expressly
modified hereby shall remain in effect in accordance with their
terms and shall continue to bind the parties hereto.
6.6Assignment. This Agreement and the Note shall not be
assignable or transferable by the Company (including by sale of
stock, operation of law in connection with a merger, or sale of
substantially all the assets, of the Company) without the prior
written consent of Lender. Lender or its assignee may assign, in
its sole discretion, any or all of its rights, interests, and
obligations under this Agreement and the Note to any third party.
6.7Binding. This Agreement shall be binding upon and inure to
the benefit of the Company and Lender and their respective
successors and assigns (to the extent permitted by the terms
hereof).
6.8Expenses. The Company shall pay all expenses (other than
legal fees) incurred by Lender in connection with the
preparation, execution and delivery of this Agreement and the
other agreements to be executed in connection herewith. The
Company shall indemnify and reimburse Lender for all costs and
expenses (including legal fees) incurred by Lender in connection
with the enforcement of its rights hereunder.
6.9Severability. If any provision of this Agreement, or the
application of any such provision to any person or circumstance
shall be held invalid, illegal or otherwise unenforceable in any
respect by a court of competent jurisdiction, such invalidity,
illegality or unenforceability shall not affect any other
provision hereof.
6.10Compliance with Laws. Both parties agree to comply and to do
all things necessary to enable the other party to comply with all
federal, state and local laws, regulations and ordinances.
6.11Amendment. This Agreement may be amended or modified only by
a written agreement of the parties hereto specifically referring
to this Agreement.
6.12Choice of Law; Jurisdiction. This Agreement shall be
governed by and construed in accordance with the internal laws of
the State of New York, applicable to agreements performed
entirely within such State without regard to the conflicts of law
principles of such State. Each of the parties hereto irrevocably
waives any and all right to a trial by jury in any legal
proceeding arising out of or related to this Agreement. The
parties agree to submit to the exclusive jurisdiction and venue
of the federal or state courts of New York, County of
Westchester, to resolve any and all issues that may arise out of
or relate to this Agreement.
6.13Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more of such
counterparts have been signed by each of the parties and
delivered to the other party, together with any other required
documentation.
6.14Headings. Headings of sections are for convenience only, are
not part of this Agreement and shall not be deemed to affect the
meaning or construction of any of the provisions hereof.
6.15Entire Agreement: This Agreement, the Note, the Security
Agreement, the Warrant and the Registration Rights Agreement
constitute the entire agreement and understanding with respect to
the subject matter hereof.
ACCEPTED AND AGREED:
ACCENT COLOR SCIENCES, INC. INTERNATIONAL BUSINESS
MACHINES CORPORATION
By:_________________________By:____________________________
Name:______________________ Name:_________________________
Title:________________________Title:__________________________
Date: Date:
Witness:_____________________________
STATE OF ____________________________
COUNTY OF___________________________
I, ______________________________________, a Notary Public in and
for the said County, in the State aforesaid, DO HEREBY CERTIFY
THAT ___________________________, the ___________________________
of Accent Color Sciences, Inc., who is personally known to me to
be the same person whose name is subscribed to the foregoing
instrument as such, appeared before me this day in person and
acknowledged that he signed and delivered said instrument as his
own free and voluntary act, and as the free and voluntary act of
Accent Color Sciences, Inc., for the uses and purposes therein
set forth.
Given under my hand and notarial seal this ___day of _________,
1998.
___________________________
Notary Public
My Commission Expires:
